from the better-your-civil-liberties-violated-than-your-intelligence-agency-slightly-brui dept

Obama's will-this-do NSA reform plan left critics with plenty to say, even if it did manage to exceed expectations which were set at world-record-attempt-in-limbo height. The NSA's supporters, on the other hand, had plenty to say about it, mainly because it seemingly justified their pro-surveillance state position.

"It was better than I expected it to be," said Rep. Peter King (R-N.Y.), a member of the House Intelligence Committee who attended the White House announcement and a staunch defender of the NSA. "Basically the system stays intact, even on the metadata."

The only caveat King offered was that some of the specifics seemed a little arbitrary.

"I wouldn't have put any of these reforms in place, but having said that, I think they are the minimum of what he had to do, especially considering his base and where he's coming from," King said, pointing to the limits on tracing secondary and tertiary phone numbers. "I don't know what the constitutional or statutory reason for that is, why two is safer than three, but again, I think that was a way to calm down the ACLU types. That just seemed to me like a cosmetic compromise."

Those pesky "ACLU types" and their obsession with civil liberties and privacy. Just imagine the robust surveillance state we could have if we'd just rid ourselves of the few entities working day in and day out to preserve our Constitutional rights!

But he's right. The "hop" limitation isn't built on laws or statutes. It's an arbitrary number that projects a certain amount of visible restraint on the NSA's behalf. It could hop all it wanted to and likely get away with it, give or take a Snowden. In fact, the ODNI's latest batch of court orders shows that the NSA had already voluntarily dropped from four (or more) hops down to three as of 2010.

In addition, the Court understands from the Declaration of Lieutenant General Keith B. Alexander, Director of NSA (Ex. A to the Report of the United States filed in docket number BR on August 17,2009) that NSA has made a number of technical modifications that will prohibit a) from inadvertently accessing the BR metadata in [xxxxxxx]; b) from querying the BR metadata in [xxxxxxx] with non-RAS-approved identifiers; and c) from going beyond three "hops" from an identifier used to query the BR metadata in [xxxxxxx].

There was no "constitutional or statutory reason" for this reduction either. It was most likely a good faith effort to get back on Judge Walton's good side after he halted the 215 collections for "systemic abuse" that had occurred since the inception of the program. Likewise, Obama's choice to dial it back another hop is simply there to show that the program is indeed being "altered," however slightly. But we're back to trusting that the NSA is actually doing what it says it does and following instructions from the FISA court and the executive branch and limiting its contact chaining to the stated number of hops.

Mike Rogers, on the other hand, wasn't quite as gracious about Obama's NSA Reform Lite. After speculating wildly that Snowden is a Russian spy and simply incapable of right-clicking classified documents and saving them to USB drives without outside help, Rogers went on to do two things, both seemingly diametrically opposed. First off, he released this statement with Dianne Feinstein in support of the president's speech.

“Today President Obama gave a strong speech in defense of the need to collect and use intelligence in order to protect the nation and to prevent terrorist attacks around the world. We strongly agree with his comments in support and praise of the professionals in our intelligence community who do this work while upholding the civil liberties and privacy rights of all Americans."

On CNN's "State of the Union," House Intelligence Committee Chairman Mike Rogers (Mich.) expressed concern that the president's plan to weigh privacy issues and the government's role in collecting telephone metadata has "interjected a level of uncertainty and is having a whole bunch of us scratch our heads."

Hmm. When the only good reform is no reform, even minor reforms become majorly confusing. I'm sure Rogers is perplexed as to why his incessant, often nonsensical defense of the NSA has failed to end the "debate." I'm sure the president is also perplexed, having received a public statement from Rogers that literally said "great speech, Chief!" only to have every sentiment in it stripped away by the Congressman on live TV. (Or not. Politics and such.)

The furrow in Rogers' brow must have been deep enough to cut off oxygen to his brain, because he followed up his "concern" with this melange of surveillance tropes and baseless claims.

Rogers said the president's proposals represent big changes that could jeopardize efforts to keep the nation safe from attack.

He said that parts of the president's proposal are "unworkable" and questioned the president's call to look at whether the government or private sector should handle the bulk of the intelligence gathering.

The program has stopped hundreds of thousands of wasted FBI man hours chasing leads down rabbit holes, he said.

He argued that the program fills the gap "that we know we missed on the 9-11 attacks" and allows intelligence officials to dig more deeply into the details of communications.

"I just think we don't want to go to pre-9-11 because we haven't had an attack," he said.

There you have it. Not much changed for the NSA, program-wise, and yet we're now terrorist fodder. Rogers says Obama handed down "big changes," something absolutely no one (outside the NSA) agrees is true. It's mostly cosmetic changes and empty gestures that leave nearly every NSA program completely unscathed and it was all prefaced by a multi-paragraph love note to the intelligence community.

Since the leaks began, Rogers has devolved into a caricature -- a broadly-drawn surveillance statist that spouts talking points and sees terrorists lurking behind every civil liberty. Rogers maintains his hardline on protecting the NSA's status quo even when other intelligence cheerleaders are having a hard time finding much to complain about in Obama's "comprehensive" NSA "reform" "effort." He is no longer relevant to the debate. The only problem is his position at the head of the House Intelligence Committee, a platform that guarantees he will always be asked his opinion -- and from which he can undermine further reform efforts and stymie his fellow representatives' attempts at oversight.

from the you're-no-paul-revere dept

As expected, President Obama this morning gave his speech concerning his plans to "reform" the NSA. Similar to the original task force report, for which the White House first leaked claims that the recommended changes would be "cosmetic"... and then presented something a little more powerful, to try to win people over by beating low expectations. The same is true here. Earlier this week, the White House leaked out reports of cosmetic changes with little in the way of real reforms. Then, this morning, the President announced more significant reforms than expected. He did, in fact, propose a few major changes. You can read the full speech here. Among the things he announced:

A judge will have to approve each query for data on the metadata collection from Section 215 of the PATRIOT Act.

The "three hop" dragnet will be reduced down to two hops. That does, in fact, limit how far the NSA can search by quite a bit. That last hop is quite big.

The NSA should no longer hold all of the data, meaning that the telcos will be expected to hold onto it (though, he leaves it up to Congress and the DOJ to figure out how to do this). He calls this a "transition" away from the Section 215 program, but that's hardly clear.

National Security Letters (NSLs) will no longer have an unlimited gag order on them. The Attorney General will need to set up guidelines for a time in which gag orders expire, with the possibility of extending them for investigations that are still ongoing.

Companies will be given slightly more freedom to reveal data on the NSLs they get (though I don't think he indicated the same thing for Section 702 orders.... which is a big concern).

The Attorney General and the Director of National Intelligence will review annually FISC rulings to figure out what can be declassified.

He promises to "work with Congress" to look at changes to the FISA court

He is adding some very limited restrictions on spying on people overseas. It should only be used for actual counterterrorism/crime/military/real national security efforts.

A State Department official will be in charge of handling "diplomacy issues" related to these changes on foreign spying.

An effort will be started with technologists and privacy experts over how to handle "big data and privacy" in both the public and private sectors.

That is... he is ordering changes that go slightly beyond the expectations his own staffers leaked earlier this week... but stopping way short of actually fixing the problems. And, even with his changes, he leaves many of the details to Congress and the DOJ to sort out for themselves, which is not particularly encouraging, considering how both have acted for decades when it comes to surveillance.

Bulk data collection will still continue in some form, despite the fact that it appears that bulk data collection is rarely useful, compared to targeted surveillance. There will be slightly more oversight, despite the fact that oversight in the past has failed. There will be no effort to stop trying to compromise the technology of American (and foreign) companies leading to serious questions about our tech industry's ability to do business overseas (and at home).

Yes, this is better than it could have been, but only by a tiny degree. The President claims that he is open to further changes, but the fact that he is clearly resisting the major overhauls that are clearly needed does not provide any confidence that he's actually moving towards fixing the overreaching surveillance state. The speech sounded lofty, and talked about American ideals and the necessity of protecting civil liberties, but only moved the ball a very slight way towards getting there. Further, it leaves open plenty of ways for the intelligence community to claw back whatever he's making them "give up" through other means.

Update: Embedded the Presidential Directive that he signed today to put all of what he discussed into effect. You can read it below.

from the sad dept

Fifty three years ago today, President Dwight Eisenhower gave his famous speech warning of the military-industrial complex. It's quite a speech, and well worth reading, listening to or watching. But, the famous lines are the ones that still rings true today:

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

The White House claims that it's a mere coincidence that President Obama has chosen the anniversary of that speech to give his speech, outlining what are expected to be merely cosmetic reforms to the NSA's surveillance efforts, still convinced that even if the programs are incredibly broad and powerful, that it's okay since he won't abuse them.

The folks over at EFF have put together scorecard of NSA reforms that the President should announce. You can play along at home and check off which ones the president actually supports, but I wouldn't rush to sharpen your pencils. You're not going to see too many checked boxes on this chart.

Eisenhower noted that a true leader is focused on the goals of a free society, understanding technological change, and the influence of corporate interests, but keeping focused on the larger goal of protecting freedom:

It is the task of statesmanship to mold, to balance, and to integrate these and other forces, new and old, within the principles of our democratic system -- ever aiming toward the supreme goals of our free society.

The current president would do well to reread and to think about Eisenhower's words, but it appears that is not likely to happen.

from the this-is-why-no-one-trusts-them dept

Want to know why no one trusts anything NSA officials and their defenders have to say any more? When the bulk metadata collection was first revealed, those defenders went on and on about how the program "saved countless lives" and was instrumental in stopping terrorist attacks. Some skeptics then asked what terrorist attacks, and we were told "around 50" though details weren't forthcoming. Eventually, we were told that the real number was "54 terrorist events" (note: not attacks) and a review of them later revealed that basically none of them were legitimate. There was one "event" prevented via the program on US soil, and it was a taxi driver in San Diego sending some money to a terrorist group in Somalia, rather than an actual terrorist attack.

In fact, both judges and the intelligence task force seemed shocked at the lack of any actual evidence to support that these programs were useful.

And yet, the NSA and its defenders keep insisting that they're necessary. Director of National Intelligence, James Clapper, a few months ago, tried out a new spin, claiming that effectiveness wasn't the right metric, but rather "peace of mind." Of course, the obvious response to that is to point out that spying on everyone makes most of us fairly uneasy, and we'd have a lot more "peace of mind" if they dropped the program.

"I'm not going to give that insurance policy up, because it's a necessary component to cover a seam that I can't otherwise cover."

Basically, we want to keep this information because we want that information, even if it's not been shown to be at all useful. Of course, that's the same logic one can use to defend just about any violation of the 4th Amendment. Putting a private drone with a camera and a recording device streaming everything it sees and hears while following around NSA deputy director Chris Inglis may not discover that he's a corrupt bureaucrat willing to lie to the public, but it seems like a reasonable "insurance policy" to make sure he stays honest. After all, without that, the American public can't prove that he's not corrupt -- so it seems like a reasonable "insurance policy to cover a seam we can't otherwise cover." At least, in the logic of Chris Inglis.

from the look-at-that dept

What we have below is actually a ProPublica post by Kara Brandeisky, posted back in August of this year, but republished here under ProPublica's Creative Commons license. However, given the White House task force's recommendations, we thought it might be useful to be reminded what Senator Obama fought for concerning surveillance before he was President. Many of these look remarkably similar to what the task force proposes...

When the House of Representatives recently considered an amendment that would have dismantled the NSA's bulk phone records collection program, the White House swiftly condemned the measure. But only five years ago, Sen. Barack Obama, D-Ill. was part of a group of legislators that supported substantial changes to NSA surveillance programs. Here are some of the proposals the president co-sponsored as a senator.

The law ensured the government would not need a court order to collect data from foreigners residing outside the United States. According to the Washington Post, analysts are told that they can compel companies to turn over communications if they are 51 percent certain the data belongs to foreigners.

Powerpoint presentation slides published by the Guardian indicate that when analysts use XKeyscore — the software the NSA uses to sift through huge amounts of raw internet data — they must first justify why they have reason to believe communications are foreign. Analysts can select from rationales available in dropdown menus and then read the communications without court or supervisor approval.

Finally, analysts do not need court approval to look at previously-collected bulk metadata either, even domestic metadata. Instead, the NSA limits access to incidentally collected American data according to its own "minimization" procedures. A leaked 2009 document said that analysts only needed permission from their "shift coordinators" to access previously-collected phone records. Rep. Stephen Lynch, D-Mass., has introduced a bill that would require analysts to get special court approval to search through telephone metadata.

As a senator, Obama wanted the executive branch to report to Congress how many American communications had been swept up during surveillance.

The Inspector General of the Intelligence Community told Senators Ron Wyden, D-Ore., and Mark Udall, D-Co. last year that it would be unfeasible to estimate how many American communications have been incidentally collected, and doing so would violate Americans' privacy rights.

As a senator, Obama wanted to restrict the use of gag orders related to surveillance court orders.

Obama co-sponsored at least two measures that would have made it harder for the government to issue nondisclosure orders to businesses when compelling them to turn over customer data.

One 2007 bill would have required the government to demonstrate that disclosure could cause one of six specific harms: by either endangering someone, causing someone to avoid prosecution, encouraging the destruction of evidence, intimidating potential witnesses, interfering with diplomatic relations, or threatening national security. It would have also required the government to show that the gag order was "narrowly tailored" to address those specific dangers. Obama also supported a similar measure in 2005. Neither measure made it out of committee.

The Obama administration has thus far prevented companies from disclosing information about surveillance requests. Verizon's surveillance court order included a gag order.

Until recently, federal prosecutors would not tell defendants what kind of surveillance had been used.

The New York Times reported that in two separate bomb plot prosecutions, the government resisted efforts to reveal whether its surveillance relied on a traditional FISA order, or the 2008 law now known to authorize PRISM. As a result, defense attorneys had been unable to contest the legality of the surveillance. Sen. Dianne Feinstein, D-Calif., later said that in both cases, the government had relied on the 2008 law, though prosecutors now dispute that account.

Dratel only learned that the government had used Moalin's phone records as the basis for its wiretap application — collected under Section 215 of the Patriot Act — when FBI Deputy Director Sean Joyce cited the Moalin case as a success story for the bulk phone records collection program.

Despite requests from Microsoft and Google, the Justice Department has not yet given companies approval to disclose aggregate data about surveillance directives.

As a senator, Obama wanted the government to declassify significant surveillance court opinions.

Currently, the attorney general also gives congressional intelligence committees "significant" surveillance court opinions, decisions and orders and summaries of any significant legal interpretations. The 2005 bill that Obama co-sponsored would have released those opinions to the public, allowing redactions for sensitive national security information.

In response to a request from Yahoo, the government also says it is going to declassify court documents showing how Yahoo challenged a government directive to turn over user data. The Director of National Intelligence is still reviewing if there are other surveillance court opinions and other significant documents that may be released. Meanwhile, there are severalbills in Congress that would compel the government to release secret surveillance court opinions.

from the times-change dept

Ever since the Snowden documents started revealing the massive overreach by the NSA, defenders of the agency and the programs have stuck by their mantra that the program is "legal" and that it was "approved by all three branches of the government." That line has been repeated over and over again. Of course, as we noted back in August, it quickly became apparent that the three parts charged with oversight were all being misled by the NSA. However, at this point, the claim that the programs have been approved by all three branches is demonstrably false.

Of course, you can expect that defenders of the NSA programs will continue to ignore all this and insist, yet again, that the programs have been approved by all three branches of government, but at that point, hopefully people will remind them that, even if that was true (and it was already misleading), all three branches of government appear to have changed their minds about it.

from the well-that's-nice dept

Back in February, we were a bit surprised during President Obama's "Fireside Hangout" when he appeared to speak out against patent trolls. Historically, most politicians had always tiptoed around the issue, in part because the pharma industry seems to view any attack on patent trolls as an existential threat -- and, frankly, because some small time patent holders can also make a lot of noise. However, it's become exceptionally clear that there's political will to take on patent trolls. We've noted five different patent law bills introduced in Congress, all targeting patent trolls in one form or another.

And now, it's been reported that President Obama is going to come out strongly against patent trolling, directing the USPTO and others to fix certain issues, while also asking Congress to pass further laws to deal with patent trolling. The President will flat out note that patent trolls represent a "drain on the American economy." The announcement will directly say that "patent trolls" (yes, they use the phrase) are a problem, while also talking about the problem of patent thickets like the infamous "smartphone wars."

The plan is scheduled to be released later today, but we've got a preview of the specific plan, and let's take a look at each of the suggestions quickly. I'm sure we'll be discussing the concepts in much more detail for the near future. The plan is split into two different parts: legislative actions (i.e., asking Congress to do something) and executive actions (i.e., ordering administration agencies/departments to do things). Let's start with the executive actions, since those are likely to have the more immediate impact.

Making “Real Party-in-Interest” the New Default. Patent trolls often set up shell
companies to hide their activities and enable their abusive litigation and extraction of
settlements. This tactic prevents those facing litigation from knowing the full extent of the
patents that their adversaries hold when negotiating settlements, or even knowing
connections between multiple trolls. The PTO will begin a rulemaking process to require
patent applicants and owners to regularly update ownership information when they are
involved in proceedings before the PTO, specifically designating the “ultimate parent entity”
in control of the patent or application.

We were just discussing this issue because of the This American Life episode where Intellectual Ventures was able to hide behind a shell, something it's been accused of doing many, many times. This is also one of the proposals we've seen in Congress. The details here will matter, and note that, with this, it will only apply to patents that are involved in proceedings before the PTO. It's a step in the right direction, but clearly could go much further -- though, much of that needs to be done legislatively (see below). Also, the definition of "in control of" may need to be specific here. In the TAL story, IV got 90% of the profits but argued that it had no actual control over the patent.

Tightening Functional Claiming. The AIA made important improvements to the
examination process and overall patent quality, but stakeholders remain concerned about
patents with overly broad claims — particularly in the context of software. The PTO will
provide new targeted training to its examiners on scrutiny of functional claims and will, over 3
the next six months develop strategies to improve claim clarity, such as by use of glossaries
in patent specifications to assist examiners in the software field.

This is a big one, and everyone, if you get a chance, go thank Mark Lemley for campaigning strongly on this point over the last year. Lemley has been pointing out for quite some time that the broadness of software patents almost certainly violates the 1952 Patent Act's prohibition on so-called "functional claiming." In short, these are claims to a general function, rather than a specific solution. So... claiming a patent on "podcasting" rather than a very specific way of doing podcasting. Telling the USPTO to retrain examiners to recognize functional claims as ineligible for patent protection could be very helpful in knocking out a lot of bad patents in the future.

Empowering Downstream Users. Patent trolls are increasingly targeting Main Street
retailers, consumers and other end-users of products containing patented technology — for
instance, for using point-of-sale software or a particular business method. End-users should
not be subject to lawsuits for simply using a product as intended, and need an easier way to
know their rights before entering into costly litigation or settlement. The PTO will publish
new education and outreach materials, including an accessible, plain-English web site
offering answers to common questions by those facing demands from a possible troll.

This is an increasing problem, which we've discussed a bunch of times, with the various patent lawsuits against podcasters, cafes offering WiFi and networked scanners. Of course, providing them "education and outreach materials" seems like a weak response, but that may be all that's possible at the exec level on that front. The legislative side (which we'll get to) tries to tackle this problem more broadly.

Expanding Dedicated Outreach and Study. Challenges to U.S. innovation using tools
available in the patent space are particularly dynamic, and require both dedicated attention
and meaningful data. Engagement with stakeholders — including patent holders, research
institutions, consumer advocates, public interest groups, and the general public — is also an
important part of our work moving forward. Roundtables and workshops that the PTO, DOJ,
and FTC have held in 2012 have offered invaluable input to this process. We are announcing
an expansion of our outreach efforts, including six months of high-profile events across the
country to develop new ideas and consensus around updates to patent policies and laws. We
are also announcing an expansion of the PTO Edison Scholars Program, which will bring
distinguished academic experts to the PTO to develop — and make available to the public —
more robust data and research on the issues bearing on abusive litigation

Yes, more outreach is important. While some may brush this off as meaningless, those who don't spend any time around actual innovators facing regular patent shakedowns really just don't realize how big a problem this is.

Strengthen Enforcement Process of Exclusion Orders. Once the U.S. International Trade
Commission (ITC) finds a violation of Section 337 and issues an exclusion order barring the
importation of infringing goods, Customs and Border Protection (CBP) and the ITC are
responsible for determining whether imported articles fall within the scope of the exclusion
order. Implementing these orders present unique challenges given these shared
responsibilities and the complexity of making this determination, particularly in cases in
which a technologically sophisticated product such as a smartphone has been successfully
redesigned to not fall within the scope of the exclusion order. To address this concern, the
U.S. Intellectual Property Enforcement Coordinator will launch an interagency review of
existing procedures that CBP and the ITC use to evaluate the scope of exclusion orders and
work to ensure the process and standards utilized during exclusion order enforcement
activities are transparent, effective, and efficient.

This is a specific issue specifically related to the ITC efforts (more on that in a bit), which would be helpful, but won't move the needle for most patent disputes.

So, the executive actions represent a recognition of the nature of the problem, and have some good ideas on how to deal with it under existing law (the functional claiming bit could be huge), but there are still limitations from the law. And that's where Congress comes in. Here are the President's suggestions:

Require patentees and applicants to disclose the “Real Party-in-Interest,” by requiring
any party sending demand letters, filing an infringement suit or seeking PTO review of a 2
patent to file updated ownership information, and enabling the PTO or district courts to
impose sanctions for non-compliance.

Above, we noted that he's already telling the PTO to require this for issues before the PTO, so this is asking Congress to extend that mandate to cover all the other situations, down to sending a demand letter. Without this, the orders to the PTO above are a lot less helpful, since owners could still hide behind a patent until it went up before the PTO. Having Congress add this component would, hopefully, severely minimize the shell companies and hidden owners issues with patents.

Permit more discretion in awarding fees to prevailing parties in patent cases, providing
district courts with more discretion to award attorney’s fees under 35 USC 285 as a sanction
for abusive court filings (similar to the legal standard that applies in copyright infringement
cases).

This is similar to the proposal first floated in Congress last year. Basically, this will allow those who are hit with a bogus patent lawsuit to seek legal fees. The "legal standard" here is a bit too high, as we've seen that it's still quite rare (though not unheard of) to see fees awarded in copyright cases. Still, it could weed out the worst of the worst.

Expand the PTO’s transitional program for covered business method patents to include a
broader category of computer-enabled patents and permit a wider range of challengers to
petition for review of issued patents before the Patent Trial and Appeals Board (PTAB).

This is basically Senator Schumer's bill, and we're all for it. Making it easier and faster to get the USPTO to dump bad patents? Yes, please.

Protect off-the-shelf use by consumers and businesses by providing them with better legal
protection against liability for a product being used off-the-shelf and solely for its intended
use. Also, stay judicial proceedings against such consumers when an infringement suit has
also been brought against a vendor, retailer, or manufacturer.

As mentioned above this is a relatively new, but quickly growing issue. Of course, the details here mater quite a bit. Better legal protection against liability sounds great, but the wording and the specifics will matter. Still, this brief description sounds right. Using a WiFi network you bought in a store for exactly what it says it will do shouldn't lead to you facing a patent troll suit. Same with using the "scan to email" function on your office scanner.

Change the ITC standard for obtaining an injunction to better align it with the traditional
four-factor test in eBay Inc. v. MercExchange, to enhance consistency in the standards
applied at the ITC and district courts.

This is important. We've talked for years about the ITC loophole that trolls have been exploiting lately. Basically, this gives patent holders two cracks at anyone they're going after, once in the courts and once at the ITC. Even worse, the ITC is not (currently) bound to follow the rules set out by the Supreme Court. This proposal would try to make the ITC process aligned with what the Supreme Court said in the very important MercExchange ruling. Prior to MercExchange, courts would commonly issue an injunction, barring the production or sale of products found to be infringing. So, say your smartphone was infringing on a single patent for a tiny little bit. The patent holder could cause the entire product to be blocked from sale if you're found to infringe. That's crazy.

Under the MercExchange ruling, the courts were told to take a more reasonable view of things, and to see if other remedies might be less harmful to innovation. Of course, with the ITC, the only power they have is to issue an injunction. That is, they can't require royalty payments or anything like that. So, if they have to follow MercExchange, it could just mean that even if they find a product infringing, they could still decide not to issue an injunction.

Use demand letter transparency to help curb abusive suits, incentivizing public filing of
demand letters in a way that makes them accessible and searchable to the public.

This is another good one. We've written a few times about the practice of some trolls to try to even keep their demands secret, such that many who receive demand letters don't know that they're one of a group -- and a group that might team up to fight back against bogus threats. Basically, it sounds like this might help lead to a "Chilling Effects" website for troll demands. That sounds quite useful

Ensure the ITC has adequate flexibility in hiring qualified Administrative Law Judges.

Further to the ITC point above -- though this seems more specific to just making the ITC feel a little less overwhelmed with all the cases coming its way lately.

All in all, it's a pretty comprehensive proposal with a lot of good ideas -- nearly all of which have been discussed or proposed in Congress already. So there really aren't any "shockers" other than the fact that the White House really seems to be taking this issue seriously, and that should lead to some action in Congress.

That said, get ready for the pushback. Pharmaceutical companies, giant patent trolls like Intellectual Ventures (and some other legacy tech companies who are long past their innovation days) and a gaggle of people claiming vaguely to represent "small inventors" are about to go ballistic over these proposed changes, and will seek to block any real progress, while simultaneously looking to water down the proposals as much as possible. It's what they did the last time, and it worked. Of course, the problem has only gotten progressively worse since then, so hopefully people realize that their complaints are really more about protecting their own chosen business models, rather than innovation as a whole.

Finally, it'll probably come as no surprise that I think there are many other proposals that would have been nice to see. A couple years ago I wrote a post suggesting what real patent reform should entail, and I still think many of those suggestions would be useful, including a real independent inventor defense, the use of independent invention as a sign of obviousness, and having patent examiners in the PTO include talking to actual people skilled in the art (i.e, people in the field working) to explore whether or not a patent application passes the "non-obvious to those skilled in the art" test. I'm still hopeful that eventually these suggestions will be picked up, but until then, the suggestions above are definitely a good start.